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R v 'Ekuasi [2022] TOSC 94; CR 3 & 103 of 2022 (11 November 2022)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY


CR 3 & 103 of 2022


REX
-v-
KOIONIA LATU ‘EKUASI
(a.k.a. NIA LATU a.k.a. SEINI KOIONIA LATU)


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mrs T. Vainikolo for the Prosecution
The Defendant (appeared after the sentence was delivered).
Date: 11 November 2022


The charges

  1. On 1 September 2022, the Defendant was sentenced in proceeding CR 3 of 2022 on one count of obtaining money by false pretenses contrary to s. 164 of the Criminal Offences Act (“the Act”) and two counts of forgery contrary to s. 170 of the Act, to a total of 18 months imprisonment, fully suspended for two years on conditions including 80 hours of community service. That sentence was based on, inter alia, the Crown’s submission that the Defendant had no previous convictions, which also informed the Crown’s submission for a fully suspended sentence.
  2. However, on 3 September 2022, the Court was advised by Senior Magistrate Pahulu-Kuli that:

to 6 months imprisonment, fully suspended for 1 year.


  1. On 6 September 2022, as a result of the Court having proceeded on a misapprehension of relevant facts concerning the Defendant’s criminal history, and in the exercise of its inherent power,[1] the sentence in CR 3/22 was recalled.
  2. Accordingly, the Defendant appears today for re-sentencing in proceeding CR 3/22 and sentencing in relation to proceeding CR 103 of 2022 which concerns the three matters to which the Defendant pleaded guilty in the Magistrates Court and which were subsequently committed to this Court to be dealt with together.

CR 3 of 2022

  1. On 7 April 2022, the Defendant pleaded not guilty to obtaining money by false pretenses and two counts of forgery by creating false receipts.
  2. On 21 July 2022, the day of her trial, the Defendant changed her plea to guilty on all counts.

The offending

  1. The Complainant resides in the USA. She and the Defendant are half-sisters, by the same mother.
  2. In about April 2021, the Complainant and her mother were organising the wedding of her sister, Luana Masima, in Tonga in December 2021. The Complainant was also in charge of paying for a venue.
  3. On 15 April 2021, the Defendant contacted her mother, ‘Olita Mafi, and told her that one of her uncles worked at the Vakaloa Beach Resort and could give them ‘a good price’ of $9,100 which included venue, food and decorations upon payment of a deposit of $2,000. ‘Olita relayed the message to the Complainant. The Complainant agreed, and on the same day, she sent the Defendant $2,698.74, told the Defendant she could keep the balance, and asked the Defendant for a receipt from Vakaloa upon making the deposit.
  4. However, the Defendant never paid the money to Vakaloa. In fact, she never made a booking with Vakaloa. Rather, upon receiving the money from the Complainant, the Defendant spent it on herself.
  5. On 16 April 2021, the Defendant sent the Complainant a photo of a fake receipt for $2,000 and told the Complainant that it was the receipt for the deposit from Vakaloa. The receipt showed that it was a payment received from the Defendant for $2,000 described as a deposit for a wedding venue and that there was a remaining balance owing of $7,100.
  6. On 28 April 2021, the Defendant messaged the Complainant and told her that her mother had asked her to add 20 pigs to the venue bill which took the overall cost to $12,300 and that, as a consequence, an additional $4,100 deposit was required. That was also untrue. The Complainant checked with her mother who confirmed what the Defendant had said.
  7. Between 28 April and 11 May 2021, the Complainant tried to contact the owner of Vakaloa on Facebook to see how preparations for the wedding were going but to no avail. The Complainant told the Defendant of her inability to contact Vakaloa directly. The Defendant told her that the owner’s Facebook page had been hacked. The Defendant then told the Complainant to email the owner direct and provided the Complainant with an email address. Unbeknownst to the Complainant, the email address was for an account created by the Defendant and not in any way associated with the Vakaloa Beach Resort.
  8. The Complainant sent an email to that address and asked whether the Defendant had made the earlier payment and whether she could make a direct payment of the $4,100. The Defendant, posing as the owner of Vakaloa, replied to the Complainant that as the discount rate was through the Defendant’s uncle, it was best to give the money to the Defendant and that “they were very busy”. In trusting what the purported owner of Vakaloa had told her, on 12 May 2021, the Complainant sent a further $4,227.25 to the Defendant and told the Defendant to keep the balance of the money after payment of the $4,100 deposit. The Complainant also asked the Defendant to send her a photo of the receipt.
  9. On 13 May 2021, the Defendant forged another fake receipt for $4,100 which was similar to the first and sent it to the Complainant.
  10. On or about 17 May 2021, the Complainant found out from other Tongan contacts that the Defendant did not make any payment to Vakaloa. She then tried to contact the Defendant. However, the Defendant had by then disconnected her phone and deactivated her Facebook account.
  11. On 25 May 2021, the Complainant managed to contact a family friend by the name of Sergeant Salt of the Tonga Police and asked him to make a complaint on her behalf. On 17 June 2021, Sergeant Salt did so. Following a long investigation, Police arrested the Defendant on 18 October 2021. She cooperated with the police and admitted to the offending when questioned.

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The Crown submits the following as mitigating features:
  3. The Crown referred to the following comparable sentences:
“Imprisonment for a purely property offence is not appropriate, unless there are unusual circumstances that render imprisonment necessary.”
(b) Heleni Vi (CR 28/2014) – the Defendant pleaded guilty to imprisonment and forgery involving a total of $8,671. The Defendant was an employee of Westpac Bank at the time and had transferred money from customers’ accounts to her own. Cato J sentenced the Defendant to 12 months for the embezzlement and 9 months for the forgery. Both sentences were fully suspended.
(c) ‘Umukisia Tu’iono (CR 119/2012) – the Defendant pleaded guilty to one count of forgery and three counts of falsification of accounts totaling $4,000. The Defendant was also an employee and there were other staff involved in the offending. Cato J set a starting point of 3 years, reduced to 2 for an early guilty plea, He also considered that the Defendant had good prospects of rehabilitation. The final sentence for the forgery and false accounting was 2 years imprisonment concurrent, fully suspended for 3 years, on conditions.
(d) Kimela Aso (CR 107/2012) – the Defendant, who was an employee of Cowley Bakery, pleaded guilty to four counts of forgery which involved invoices, and through which, he stole, or failed to account for, $4,800. Cato J set a starting point of 2 years on each of the forgery counts, reduced by 12 months for mitigation with the resulting sentence being fully suspended.
(e) Hona Maria Ika (CR 187/2020) – the 27-year-old Defendant made a number of unauthorised withdrawals, totaling $18,000, from a bank customer’s internet banking account over a period of 3 months. She was subsequently charged with theft. In that case, it was observed that:
“[18] ... whilst the amount in question is not at the higher end of the range of comparable sentences, it is still a substantial sum. That factor and the nature and duration of the offending makes this a serious crime. Not only did the Defendant breach her obligation of trust towards the bank, she sought to take advantage of a customer of the bank who lives overseas. The manner in which the offending was executed also shows a significant degree of calculation, planning, and connivance.”

A starting point of 2 years was set, reduced by 6 months for the early guilty plea and by a further 6 months because the Defendant made full restitution. The resulting sentence was partially suspended on conditions.

(f) ‘Anaseini Kolomalu (CR 115/2011) – the Defendant pleaded guilty to embezzlement[2] and theft from her employer of a total of $21,051. She was sentenced 18 months’ imprisonment, fully suspended for two years on conditions including 120 hours community work.
(g) ‘Anasitasisi To’a (CR 7/2013) – the Defendant was sentenced for embezzlement, falsification of accounts and theft involving a total amount of $25,208 to 2 years imprisonment with the final 9 months suspended.
(h) Salote Latu (CR 5/2013) – the Defendant was sentenced for embezzlement, falsification of accounts and theft of just over $15,000 to 2 years imprisonment with the final year suspended.
(i) Manuele (CR 141/2015) – the Defendant pleaded guilty to six counts of embezzlement totaling more than $12,000. A starting point was set of 18 months’ imprisonment reduced by 9 months for mitigation with the balance fully suspended on conditions including 60 hours community service.
(j) Filimone To’aho (CR 24/202) – the Defendant pleaded guilty at the commencement of his trial to one count of theft involving a loan of over $17,000 to purportedly purchase 20 motor vehicles from Japan. The Defendant made restitution of $17,000. A starting point of 22 months’ imprisonment was set, reduced by 5 months for the Defendant’s good previous record and guilty plea, and by a further 5 months on account of the substantial restitution. The resulting sentence of 12 months imprisonment was fully suspended for 2 years on conditions.
(k) Malia Selupe (CR 47/2020) – the Defendant pleaded guilty at the conclusion of her evidence at trial to five counts of obtaining money by false pretenses, in which through her car dealer business, the Defendant obtained deposits for vehicles totaling of $59,950 from a number of customers over a period of 14 months, but never delivered any vehicles. Starting points were set of 24 months for count one, 20 months for count two, 16 months for count three and four combined and 12 months for count five. The sentences were ordered to be served cumulatively, resulting in a total of six years imprisonment. However, after having regard to totality principle, a starting point of four years was adopted instead. For the Defendant’s late guilty plea and good previous record, one year was deducted. The final 12 months of the resulting 3 year sentence was suspended for 2 years on conditions.
(l) Mateo (CR 61/2018) – the Defendant pleaded guilty late to one count of obtaining money by false pretenses, three counts of forgery and three counts of knowingly dealing with forged documents. He had obtained $48,200 from the Complainant by representing that the Pacific Forum Line was selling a particular shipping container. The Defendant was 23 years old, employed with no prior convictions and he undertook to repay the Complainant. Cato J imposed a head sentence of 2 years imprisonment, fully suspended for two years on conditions.
  1. Here, the Crown agrees with the starting points set when the Defendant was first sentenced, namely:
  2. The balance of the Crown’s submissions on the appropriate sentencing formulation will be referred to further below.

Presentence report

  1. The presentence report prepared for CR 3/22 provided the following information.
  2. The Defendant is 32 years of age. When she was five months old, her mother left her in the care of her paternal grandparents and travelled to Hawai’i where she married and had a family of her own. The Defendant’s father did the same.
  3. Accordingly, the Defendant considered herself a stranger to both families including her half-siblings. Her mother always checked on her and helped her out financially with her schooling and daily expenses. However, the Defendant described her stepmother as someone she did not like at all. The Defendant left school due to peer pressure and did not like the academic competitive attitude her half-sisters expressed towards her.
  4. The Defendant told the Probation Officer that while growing up, she felt left out and always wondered what it would be like to have both parents raising her. She added that if she had been raised by her parents, maybe she wouldn’t have ended up in this trouble.
  5. The Defendant married in 2011 and divorced in 2014. She has since married again and told the Probation Officer that she ‘keeps in touch with her husband’ while he is in New Zealand participating in the seasonal program.
  6. She told the Probation Officer that she is now looking after her aging grandmother with the help of her uncles.
  7. However, the Town Officer described the Defendant as having grown up in a good family but that she had chosen her own path to be a “troublemaker”. He said that she was loved by her father’s family and spoiled by her grandparents. She had a good upbringing but still felt inferior to her half-siblings and her stepmother. The Town Officer emphasised that the Defendant does not reside at Kanokupolu, that he hardly saw her in the village and that he did not know her whereabouts. He also said that the Defendant’s grandmother is being looked after by her own sons.
  8. In relation to the offending, the Defendant told the Probation Officer that she knew that it was her half-sister’s money and that she took advantage of it in the hope that she would be forgiven for it. The Defendant said she did not know she would end up being charged for it. She told the Probation Officer that she would start repaying the money owed to her half-sister through the Court. She also told the Probation Officer that she would provide receipts as a sign of remorse and regret for what she had done. However, as at the date of the report, no receipts had been provided.
  9. The probation officer assessed the Defendant as follows:
“... ingenious as she is, she has found many ways to defend herself about being left out by her biological parents. At first, she blamed everything at growing up without parents although she has the love of her paternal grandparents; a privilege that some people did not have but did grow up and accomplished so well in life. The Defendant challenges the setting of her life especially when it came to the offending factors. She tests the love and trust of her half-siblings to see if they truly love her. Unfortunately, she did it in the wrong way and thereby lost their trust and sense of believing which is very hard to change.”
  1. Notwithstanding, the Probation Officer considered the Defendant to still be relatively young and that she has a chance of rehabilitation, particularly if she completes a Life Skills Course. On that basis, a partially suspended sentence was recommended.

Starting points

  1. Section 164 of the Act provides that any person who commits the offence provided for therein shall be liable to the same punishment as if he had committed theft. Section 145 prescribes a maximum penalty for theft where the value of the thing stolen does not exceed $10,000 of 3 years imprisonment.
  2. Section 171 prescribes a maximum penalty for forgery of 7 years imprisonment.
  3. Having regard to the caution stated in Mo’unga in relation to purely property offences, I consider that there are unusual circumstances in this case, namely, the level of premeditation and contrivance, and the fact that the offending was not just a single event but was orchestrated over a period of at least two months. For those reasons, I consider that imprisonment is necessary.
  4. On the basis of the seriousness of the offending, the comparable sentences referred to by the Crown, the statutory maximum penalties, the principles referred to above, the lack of any restitution to date and the Defendant’s recent previous conviction for similar offending, the starting points are maintained, namely:

Mitigation

  1. As it has now been established that the Defendant does not a good previous record, the Crown submitted that for the Defendant’s late guilty plea only, a discount of 20% should be applied. I agree.
  2. Accordingly, I reduce those starting points by 20%, resulting in the following sentences of imprisonment (on average rounded down):
  3. Whether the sentences should be served concurrently or cumulatively, in whole or in part, will be addressed further below after considering the appropriate sentences for CR 103/22.

CR 103 of 2022

  1. On 30 September 2022, the Defendant pleaded guilty to a further three counts of obtaining money by false pretenses contrary to s 164 of the Act.

The offending

  1. In November 2019, Simione Tiueti, of Hofoa, came across an advertisement on Facebook under the account of ‘Ngaue ho’o faitotonu’ for a white double-cab van for sale. The account was controlled by and the advertisement was posted by the Defendant. When Simione enquired about the van, the Defendant responded that the price was $14,500 and that the van was estimated to arrive by ship on 2 January 2020. At the Defendant’s request, Simione provided a cash deposit of $8,000 for the vehicle. On 3 December 2019, the parties signed a contract and the Defendant provided Simione with a receipt for the $8,000 deposit. From mid-January 2020, Simione followed up with the Defendant on a number of occasions about the arrival of the vehicle. Each time, the Defendant concocted excuses for why the ship was delayed such as “strong winds”. Simione waited until mid-July 2021, when he then lodged a complaint with police.
  2. In June 2020, ‘Aiveni Fonua, of Mataika, responded to an advertisement on the internet by the Defendant for a vehicle for sale and entered a contract with the Defendant to purchase the vehicle for $7,500. He gave the Defendant a deposit of $4,000. The Defendant told ‘Aiveni that the vehicle would be delivered in July 2020. In July, when he followed up about the vehicle, the Defendant informed ‘Aiveni that the shipment was delayed. In early 2021, the Defendant’s husband told ‘Aiveni that they would refund his money, which he accepted. In May 2021, after not receiving the promised refund, ‘Aiveni lodged a complaint.
  3. In February 2021, Kulukona Puniani, of Kolomotu’a, agreed to purchase two vehicles advertised on Facebook from the Defendant. She paid the Defendant a total deposit of $8,500. On 30 March 2021, the Defendant told Kulukona that the vehicles were ready for collection. However, when Kulukona went to Kolovai as instructed, the Defendant was not there. The following week, the Defendant contacted Kulukona and told her to wait to pick up both vehicles. Kulukona followed up with the Defendant on several occasions about the vehicles but the Defendant did not answer her phone. Instead, the Defendant messaged Kulukona that if she wanted her money refunded, she could pick it up. On several occasions, Kulukona went to the Defendant’s residence to collect her money, but the Defendant was never home. On 25 April 2021, Kulukona found the Defendant at her residence and contacted the police. When an officer arrived, the Defendant agreed to refund Kulukona’s deposit the following day. However, the next day, the Defendant asked for more time, to which Kulukona agreed. Subsequently, the Defendant made repeated requests for more time to pay to which Kulukona agreed. But the Defendant eventually ceased all contact with Kulukona and so on 30 April 2021, Kulukona lodged a complaint with the Police.
  4. In May 2021, the Police obtained the Defendant’s financial records. They found that the Defendant had not created any accounts for the various deposits received nor had she ordered any vehicles. When she was arrested and questioned by Police, the Defendant gave various purported explanations for her failure to deliver any of the vehicles or to refund any of the deposits.

Crown’s submissions

  1. The Crown submits the following as aggravating features of this offending:
  2. The Crown submits that the only mitigating feature here is the Defendant’s guilty plea.
  3. The Crown referred to the same comparable sentences as above.
  4. Here, the Crown submits the following starting points:
  5. The Crown also submits that the starting points for this offending should be reduced by 20% for mitigation.

Presentence report

  1. Despite being directed by the Court when she was arraigned on 30 September 2022, according to the probation office, the Defendant failed to appear for an interview and has since been uncontactable via the phone details she provided. As such, the Probation Office has not been able to prepare any supplementary presentence report which might have included anything the Defendant wished to say about this most recent offending. In any event, given the plethora of fabricated stories she told the complainants and the police, it is unlikely that anything she might have told the probation office would have been of any great assistance.

Starting points

  1. As with CR 3/22, I consider that there are unusual circumstances in this case, namely, the level of premeditation and contrivance, and the fact that the offending was not just a single event but was orchestrated over a period of at least 15 months in respect of three separate victims. For those reasons, I consider that imprisonment is necessary.
  2. Further, I also regard the offending here as more serious than in CR 3/22. Here, the overall amounts of money were larger. Those amounts were bilked from three separate victims who were unrelated to the Defendant. I am also satisfied that the Defendant’s scheme (or scam) meant that she never intended nor put in place any ability to ever order the vehicles for which the unwitting victims handed over deposits. In my view, this type of planned financial criminal enterprise ought be met with condign punishment not only to reflect the community’s denunciation of such behaviour and to protect the community but also to deter offenders and others who might be tempted to engage in cheating others in this way.
  3. Having regard to that additional gravity of this offending, the amounts of money obtained in each count, the significant adverse effects of the offending on the victims and their families, the comparable sentences referred to by the Crown, the statutory maximum penalty, the principles referred to above, and the lack of any restitution to date, I set the following starting points:

Mitigation

  1. For the Defendant’s late guilty plea and good previous record, I reduce those starting points by 20%, resulting in the following sentences of imprisonment:

Magistrates Court CR 629 & 637 of 2021

  1. The Crown acknowledges that the offending in the instant proceedings predated the suspension period imposed by the Magistrates Court in CR 629 and 637 of 2021. Therefore, there is no basis for activating that suspended sentence.

Concurrent vs Cumulative

  1. Having fixed appropriate sentences for each offence, I now turn to consider whether, and if so, the extent to which each sentence in each proceeding should be served concurrently or cumulatively as well as questions of totality: R v 'Asa [2020] TOSC 72 at [42] citing Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 624.
  2. Ordinarily, cumulative sentences should only be imposed for offences that are unrelated: Hokafonu v Rex [2003] TOCA 3 at [51]; Valikoula v R [2021] TOCA 5. The question involves two issues: first, whether the offences were so closely connected that they should be regarded as part of the one course of criminal activity; and secondly, whether in any event, the totality principle requires the sentences to be made, wholly or partially, concurrent: Kolo v Rex [2006] TOCA 5 at [11].
  3. In ‘Asa, ibid, it was observed that:
“[44] The totality principle requires the court to have regard to the totality of the offending, particularly where the offences are a series of related offences: Kolo, ibid, at [12].[3] According to the principle, a court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the process to consider whether the aggregate figure represents a proper period of incarceration to be imposed for the total criminality involved: McDonald v The Queen [1994] FCA 956; (1994) 48 FCR 555 at 563. Further, in cases where the prisoner has not previously been sent to gaol, the accumulation of sentences to be imposed ought not to result, unless there is no alternative, in a total which is a crushing first period of imprisonment. If possible, justice should especially avoid placing such a person where, in Milton’s words, "hope [can] never come [t]hat comes to all".[4] In a case of that kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63.”
  1. The final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive: R v Bocskei (1970) 54 Cr App R 519 at 521.
  2. In its submissions, the Crown approached this aspect of the sentencing process by combining all its submitted starting points in the two cases, which totalled 95 months or 7 years and 11 months imprisonment, and then reducing that by 20% for mitigation, which would have resulted in an aggregate sentence of 76 months or 6 years and 4 months imprisonment. The Crown acknowledged, however, that in light of the total amount of $27,476 falsely obtained across the two proceedings, and by application of the totality principle, that would be a ‘crushing’ sentencing. Accordingly, the Crown submitted a ‘global starting point’ of 2 years imprisonment, plus 1 year to reflect the aggravating factors resulting in 3 years. Presumably, if the same discount for mitigation were then to be applied, the resulting sentence would be approximately 29 months imprisonment.
  3. In my view, and by comparison with the comparable sentences relied on by the Crown, that result would not be an adequate reflection of the totality of the Defendant’s offending nor would it fulfil the sentencing objectives referred to above. Even though the Defendant is not to be resentenced for the Magistrates Court offences in CR 629 and 637 of 2021 (6 months imprisonment fully suspended, which, in my respectful view, was lenient), it bears noting that over a period of approximately two years, she defrauded a total of six people of more than $40,000. It is also relevant that the Magistrates Court suspended sentence will now be effectively subsumed by the instant sentences.
  4. In relation to CR 3/22, I remain of the view, that the offending in counts 2 and 3, the forgery charges, facilitated the obtaining of the money by false pretenses in count 1. The Crown originally approached that overall offending as a continuing course of conduct thereby warranting concurrent sentences. On this occasion, the Crown appears to have accepted that each count was a separate offence so that the sentences should be cumulative, subject to considerations of totality.
  5. In my view, given that the overall offending occurred over a few months and the Defendant employed quite sophisticated means including creating the false email account and address for the Vakaloa Resort, the two forgery charges should be seen as separate offending. For that reason, partial cumulation is warranted. I therefore consider it appropriate to add two months from each of the sentences for counts 2 and 3 to the sentence for count 1, resulting in an aggregate head sentence of 18 months’ imprisonment with the balance of the sentences to be served concurrently.
  6. In relation to CR 103/22, the case for full cumulation is more compelling. The offending there involved different times, different victims and different amounts of money. The only common denominator was the Defendant’s modus operandi in using a fake car dealer business (the same method employed in the Magistrates Court cases) to lure the victims into handing over their money. Accordingly, each of the sentences in that proceeding ought be served cumulatively making an aggregate sentence of 43 months imprisonment.
  7. For the same reasons, the resulting sentences in each of the separate proceedings should also be served cumulatively, making a total prima facie sentence of 61 months (or 5 years 1 month) imprisonment.
  8. However, having regard to the totality of the offending, and the fact that this will be the Defendant’s first prison sentence to be served, I consider it appropriate to reduce the total sentence to 3 years.

Suspension

  1. By reference to the considerations discussed in Mo’unga v R [1998] Tonga LR 154 at 157, the Crown submitted that the Defendant is entitled to partial suspension of her sentence on account of her guilty pleas and cooperation with the authorities in CR 3/22, and that any portion of her sentence to be suspended should be suspended for the maximum statutory period of three years. I agree.
  2. Originally, in CR 3/22, the Crown submissions sought to distinguish the offending there from a number of the comparable sentences referred to (mostly those that involved embezzlement) on the basis that those cases involved more ‘calculated, protracted and systemic offending’ and that they also involved multiple breaches of trust including as between a bank and/or business employees ‘pilfering accounts’. The Crown originally submitted that, by contrast, the Defendant’s offending was ‘relatively unsophisticated and short lived’. Those submissions and characterisation of the Defendant’s offending have not been repeated on this occasion in respect of either proceeding. It is clear, in my view, that the offending across both proceedings may properly be characterised as calculated, protracted and systematic. There is no aspect of the clearly premeditated offending that points to any diminution of culpability. There has been no clear expression or demonstration of remorse by the Defendant for her actions or the harm she has caused.
  3. In addition to the Mo’unga considerations, I also take into account the seriousness of the offending, the need for an effective deterrence and the effects on the victims: Losalu v R [2022] TOCA 24 at [9].[5]
  4. At 32 years of age, the Defendant is neither young nor old. However, the circumstances of the offending including the various stories the Defendant made up to the victims and the probation officer about it, tend to indicate a certain level of emotional immaturity; something more than mere selfishness, as if she has been obsessed with trying to gain the attention of her family members or others she may have been trying to impress with displays of (others’) money. Therefore, I agree with the probation officer’s suggestion that the Defendant is likely to benefit from the support and guidance offered by rehabilitative programs such as a Life Skills course.
  5. In all the circumstances, I consider it appropriate to order that the final 12 months of the total sentence be suspended for a period of 2 years, on the conditions set out below.

Result

  1. In proceeding CR 3 of 2022, the Defendant is convicted on:
  2. Two months of the sentences for each of counts 2 and 3 are to be added to the sentence for count 1 resulting in a total aggregate sentence of 18 months’ imprisonment.
  3. The balance of the sentences for counts 2 and 3 are to be served concurrently with the resulting sentence.
  4. In proceeding CR 103 of 2022, the Defendant is convicted on:
  5. Subject to the following Order:
  6. Having regard to the totality principle, the final aggregate sentence for both proceedings is reduced to 3 years imprisonment.
  7. The final year of that sentence is to be suspended for a period of 2 years from the date of the Defendant’s release from prison on the following conditions, namely, that during the said period of suspension, the Defendant is to:
  8. Failure to comply with any of those conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of her prison sentence.



NUKU’ALOFA
M. H. Whitten KC
11 November 2022
LORD CHIEF JUSTICE

[1] Kaufusi v Tukui'aulahi (No.3) [2021] TOCA 11.
[2] Which pursuant to s 158 carries a maximum penalty of 7 years imprisonment.
[3] Referring to Polutele v Rex [1995] Tonga LR 59 and Hokafonu v Rex (Court of Appeal, Burchett and Tompkins JJ, 25 July 2003) at para 52.
[4] Paradise Lost, 1:66-67.
[5] Citing R v Motulalo [2000] Tonga LR 311; Vake [2012] TOCA 7, referring to Misinale [1999] TOCA 12.

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